The Council of Ministers

The authors of the Constitution have established the British pattern of Cabinet Government in India. Art.74 of the Constitution provides that there shall be Council of Minister with the Prime Minister at its head to aid and advice the President in the exercise of his functions. Under the Parliamentary form of Government, which has been established in India, the real executive of the Indian Union is the Council of Minister, which actually exercises the executive authority, theoretically vested by the Constitution in the President. It is the council of Ministers that forms the pivot around which the entire machinery of the Government revolves. The head of State is the President, but the head of the Government is the Prime Minister.

Formation of the council of ministers

The Constitution provides that the Prime Minister shall be appointed by the President and on the advice of the Prime Minister the President will appoint other Ministers. It should be borne in mind that in appointing the Prime Minister; the President will have little chance of exercising his own discretion. He will have to select the leader of the party, which secures a majority in the Lok Sabha. Only when none of the parties represented in the Lok Sabha commands a clear majority, the President may have some freedom of choice. The selection of other Ministers, in practice has simply to accept his choice. The Prime Minister not only selects other Ministers but also distributes work among them. The President has to accept the team chosen by him. The strength of the Council of Ministers is not fixed. It is left to the discretion of the Prime Minister.

A Minister must be a member of either House of Parliament. If a person who is not a member of either House of Parliament is appointed a Minister, he shall cease to be a Minister after six months, unless in the meanwhile, he manages to get elected to either of the two Houses. The Ministers are required to take oaths of office and of secrecy administered by the President.

Ministers may be chosen from members of either House. Minister who is a member of one House, has right to speak in and to take part in the proceedings of the other House though he has no right to vote in the House of which he is not a member.

Size of council of Ministers

91^st Amendment: Restrict the size of council of ministers to 15 % of legislative members & to strengthen Anti Defection laws

Categories of ministers

The Council of Ministers is not a single body but a composite body, consisting of ministers of different ranks. The Constitution does not classify the members of the Council of Ministers into different ranks. The classification is done informally following the British practice.

The Ministers are divided into three categories, viz., Cabinet Ministers, Ministers of State and Deputy Ministers.

Cabinet ministers

The cabinet is an informal body of senior Minister who form the inner circle. It is like a wheel within a wheel. It is the Cabinet, which meets as and when summoned by the Prime Ministers, seldom meets as a body. It is the Cabinet, which meets as and when summoned by the Prime Minister for taking important decisions of the Government, and is the real policy making body of the Council of Ministers. A Cabinet Minister always heads a Ministry and given independent charge of it, unless he is appointed Minister without Portfolio.

Minister of State and Deputy Minister

Cabinet Minister is generally assisted by a Minister of State or a Deputy Minister or both. Cabinet Minister attends meeting of the Cabinet on his own right. A Minister of State may be given independent charge of a Ministry, but generally he assists a cabinet Minister in running the Minister. A Minister of the State cannot attend the meeting or the Cabinet on his own right but can attend if invited. He is normally invited when given independent charge of a Minister. A Deputy Minister is a junior member of the Council of Minister. He always functions under a Cabinet Minister of a Minister of State. He does not attend a Cabinet meeting.

Parliamentary secretaries

They are members of the Parliament from ruling party or coalition. They are appointed by the Prime Minister to assist the ministers to discharge their functions in the Parliament and committees thereof. They are not a part of council of ministers. At present there is no parliamentary secretary at central level.

Nature of advice by ministers

In 1971, the Supreme Court held that ‘even after the dissolution of the Lok Sabha, the council of ministers does not cease to hold office. Article 74 is mandatory and, therefore, the president cannot exercise the executive power without the aid and advice of the council of ministers. Any exercise of executive power without the aid and advice will be unconstitutional as being violative of Article 74’.

In 1974, the court held that ‘wherever the Constitution requires the satisfaction of the President, but it is the satisfaction of the council of ministers with whose aid and on whose advice the President exercises his powers and functions’.

In 1976, 42nd Amendment of Constitution amended the Article 74(1):

74(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice“.

In 1978, 44th Amendment of Constitution added thefollowing provision at the end of 74(1):

“Provided  that the President may require the Council of Ministers  to reconsider  such  advice, either  generally  or  otherwise, and  the President  shall act in accordance with the advice tendered after such reconsideration.”.

In 42^nd Amendment of Constitution(in 1976), it was concluded that COM along with Prime Minister shall advise and aid the President in exercise of his functions and President shall act accordance with such advise means advise of COM along with Prime Minister is binding on President. Whereas in 44^th Amendment of Constitution (in 1978), it was stated that there should be Council of Minister to reconsider the advise, the advise would either of general nature or otherwise but there should be Council of Minister.

Article 74(2) clearly stated that the nature of advice tendered by ministers to the President cannot be enquired by any court. This provision emphasizes the intimate and the confidential relationship between the President and the ministers.

From Complete Article 74(1) & 74(2), it can be concluded that there should be Council of Minister and its decision is binding on President and such advice cannot be challenged in any Courts of India.

Responsibility

In Britain, every order of the King for any public act is countersigned by a minister. If the order is in violation of any law, the minister would be held responsible and would be liable in the court.

On the Contrary, there are no such provisions in Indian Constitution for Indian Ministers. Even Courts cannot interfere into such matters and are also barred from enquiring into the nature of advice rendered by the ministers to the President. This all happens as there is no rule/order/act to be countersigned by Ministers after President.

There are two type of responsibility:

• Collective Responsibility
• Individual Responsibility

Collective Responsibility: Article 75(3) describe the principle of collective responsibility and stated that Council of Ministers is collectively responsible to the Lok Sabha and we have already read above that Council of Minister on behalf of Government takes the decisions and it is responsibility of Council of minister to act jointly for any omission and commission. Once the decisions are taken by CoM, it is responsibility of other ministers to fall in line with arrangement otherwise he/she must resign from the Govt. When the Lok Sabha passes a no-confidence motion against the council of ministers, all the ministers have to resign including those ministers who are from the Rajya Sabha. Alternatively, the council of ministers can advise the president to dissolve the Lok Sabha on the ground that the House does not represent the views of the electorate faithfully and call for fresh elections. The President may not oblige the council of ministers that has lost the confidence of the Lok Sabha.

Individual responsibility

Article 75(1) also contains the principle of individual responsibility. It states that the ministers hold office during the pleasure of the president, which means that the President can remove a minister even at a time when the council of ministers enjoys the confidence of the Lok Sabha. However, the President removes a minister only on the advice of the Prime Minister. In case of a difference of opinion or dissatisfaction with the performance of a minister the Prime Minister can ask him to resign or advice the President to dismiss him. By exercising this power, the Prime Minister can ensure the realization of the rule of collective responsibility. 

Cabinet committees

The cabinet works through various committees. The following points can be noted with regard to cabinet committees.

1. They are extra-constitutional as they are not mentioned in the Constitution. However, the Rules of Business provide for their establishment.
2. They are of two types – standing and ad hoc. The former are of a permanent nature while the latter are of a temporary nature. The ad hoc committees are constituted from time to time to deal with special problems. They are disbanded after their task is completed. For example, the Emergency Committee was set up in 1961 after the Chinese invasion.
3. They are set up by the prime minister according to the exigencies of the time and requirements of the situation. Hence, their number, nomenclature, and composition vary from time to time.
4. Their membership varies from three to eight. They usually include only cabinet ministers. However, the non-cabinet ministers are not debarred from their membership.
5. They not only include the ministers in charge of subjects covered by them but also include other senior ministers.
6. They are mostly headed by the prime minister. Sometimes, other cabinet ministers particularly the home minister or the finance minister also acts as their chairman. But, in case the prime minister is a member of a committee, he invariably presides over it.
7. They not only sort out issues and formulate proposals for the consideration of the cabinet but also take decisions. However, the cabinet can review their decisions.
8. They are an organizational device to reduce the enormous workload of the cabinet. They also facilitate in-depth examination of policy issues and effective coordination. They are based on the principles of division of labour and effective delegation.
9. The more important standing committees are four – Political Affairs Committee, Economic Affairs Committee, Appointments Committee and Parliamentary Affairs Committee. The first three are chaired by the prime minister and the last one by the home minister. Of all the cabinet committees, the most powerful is the Political Affairs Committee, often described as a ‘Super-Cabinet’.

The prime minister and the council of ministers

Art. 75(1) of the constitution lies down that the Prime Minister shall be appointed by the President. But the President cannot appoint a person as Prime Minister arbitrarily. He will have to select the leader of the party commanding a majority in the Lok Sabha as Prime Minister. It is only when there are several parties in the House and none of them has a clear majority that the President may have some freedom of choice.

The Prime Minister is the keystone of the Cabinet arch. He is central to the formation of the Council of Ministers, central to its life and central to its death. If the Prime Minister resigns or dies, the whole Council of Ministers goes out along with him. Without him the Council of Minister cannot exist. The Prime Minister is the “primes inter pares” (first among equals). His powers are enormous. It is he who summons and presides over meeting of the Cabinet and determines what business shall be transacted these meetings. Moreover, he can remove a Minister any time by demanding a Minister’s resignation or having him dismissed by the President. In other words, the Prime minister can re-arrange his Ministry as he pleases. In case, there is a difference of opinion between the Prime Minister and another Minister; it is the latter that must either yield or resign. The Prime Minister’s supremacy is a necessary guarantee for the collective responsibility of the Cabinet. Other Ministers are directly responsible to the Prime Minister who can sit in judgment over them.

The Prime Minister acts as the connecting link between the President and the Cabinet. Art 78 of the Constitution lies down that it is the duty of the Prime Minister to communicate to the President all decisions of the Council of Ministers and to furnish such information relating to the administration of the affair of the Union and proposals for legislation as the President may call for. Other Ministers can see the President, but it is for the Prime Minister alone to report to him the substance of Cabinet discussions.

The Prime Minister is also the main link between the Cabinet and Parliament. He is the Government’s chief spokesman in Parliament. He is the leader of the majority party in the Lok Sabha. It is he who rakes major policy announcement. He intervenes in debates of general importance whenever he finds this necessary in order to clarify Government’s position or policy.

Functions of Prime Minister

There are five important functions of the Prime Minister of India these are:

1.      Formation of Ministry: Prime Minister "is central to its (Ministry's) formation, central to its life and central to its death". The Prime Minister has the privilege to select his Cabinet colleagues. If the Prime Minister resigns, it means the resignation of the whole Ministry. When the Prime Minister dies, the Council of Ministers will automatically cease to exist. The Prime Minister may remove the members of Council of Ministers at any time by demanding the Ministers' resignation or getting them dismissed, by the President.

2.      Distribution of Portfolios: P.M. has a free hand in assigning various departments to his colleagues. It is for him to determine the size of the Cabinet and the Ministers to be included in it. He may even select ministers outside the rank if he feels that a person is fit for a job.

3.      Chairman of the Cabinet Committee: Prime Minister is the Chairman of the Cabinet Committee. He convenes and presides over all the meetings of the Cabinet. He is to fix the agenda of such meetings. The Ministers are individually responsible to him for the good administration of their respective departments. The Prime Minister may warn advice or encourage them in discharge of their functions. He is the head of the Council of Ministers. He acts as the Chairman of various standing and ad-hoc Committees of the Cabinet.

4       Chief coordinator of Policies: The Prime Minister is the chief coordinator of the policies of several Departments. In case of conflicts between two departments, he acts as the mediator.

5.      Sole Adviser to the President: The Prime Minister is the sole adviser to the President. The right to advice for dissolution of the Lok Sabha rests with Prime Minister. The President is expected to accept the advice of the Prime Minister and not that of other Ministers. The Prime Minister is the only channel of communication between the President and the Cabinet. He informs the President all the decisions taken in the Cabinet.

The relationship between the president and the prime minister

During the Presidency of Mr. Zail Singh there was considerable controversy in the relationship between the President and the Prime Minister. The relationship between the two is regulated by the specific provisions of the Constitution and also by well-established conventions under the English constitution. From the debates of the Constituent Assembly it is the absence of Constitutional provisions relating to the concept Parliamentary form of Government, the conventions established in England in this regard are to be followed in India. Art. 53 read with Art. 74 make it clearer that even though the Constitution vests the executive power in the President, it is to be exercised on the advice tendered by the Council of Ministers. The President does not perform any real function, nor can be use his discretion except in rare situations like when no single party commands a majority in the Lok Sabha. He is bound by the advice tendered by the Council of Ministers except under specific circumstances specified in the Constitution. Neither he can ignore nor act against the advice tendered by the Council of Ministers. But under Art. 78, the Prime Minister is under a constitutional obligation (a) to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation; (b) to furnish such information relating to the administration of the affairs of the union and proposals for legislation as the President may call for, and (c) if the President requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council of Ministers. The President, therefore, enjoys the right to information on the affairs of the State. Further, the information on the affairs of the State. Further, he possesses the English King’s three traditional rights viz., the right to be consulted, the right to encourage and the right to warn. If the Prime Minister withholds information or fails to consult the President on the affairs of the State it amounts to dereliction of duty on the part of the Prime Minister. But the practical difficulty is in ascertaining whether full information has been provided to the President, as claimed by Mr. Rajiv Gandhi but refuted by Mr. Zail Singh. Such instances lead to a strained relationship between the President and the Prime Minister, which may hamper the smooth functioning of the State.

Key terms

Charged Expenditure: The expenditure from the consolidated fund of India, which is not subject to the approval of the parliament. It includes the salary of the President, speaker, chairman, judges of SC/HC, CAG etc.

Contingency Fund:  Constituted in 1950 by an act of parliament. This fund is placed at the disposal of President to make advances to meet the unforeseen expenditure. (Art 267).

Consolidated Fund: It is a general fund maintained by both the Central and State Governments to which all moneys are credited that may be sourced from anywhere by the Government of India or of the State whatsoever.

Electoral College: Is an intermediary body chosen by the electros to choose their representative in an indirect election.

Prima inter-pares:It means first among the equals. Prime Minister is described as the first among the equals.

Proportional representation: A method to determine election results on a quota basis in which generally more than two candidates compete. The quota is established or determined by dividing the valid votes polled by the number of candidates plus one. This system of voting is also called as Hare plan and certainly gives a boost to a minority candidate.

Ordinance: Presidential or Governor’s power to make law when legislature is not working is called an ordinance. It has the same effect as a law being made by a legislative organ.

Quasi-judicial: Something not truly judicial in nature, but performs somewhere a judicial role.

Single transferable vote:  This is a form of proportional representation which seeks to ensure representations to various political parties in proportion to their voting strength.

Shadow cabinet: It is the body of opposition leaders meeting from time to time and ready to take up office at short notice. It came into existence in 1876 in British parliament and has not yet found roots in Indian polity.